Res 2018-040/approving a contract with TXI Operations, LP, d/b/a Martin Marietta for the sale of reclaimed water

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commences, or has commenced against it, proceedings in bankruptcy, this will constitute a default by Martin Marietta. This Contract may be terminated by either party upon a default by the other party. In the event of a default by a party, the other party will give the defaulting party written notice of default, and, if the defaulting party fails to cure or remedy the default within 30 days following receipt of notice, this Contract will terminate immediately without further notice to the defaulting party. The City's acceptance of Martin Marietta's monthly payments subsequent to the occurrence of any event of default will be as compensation for the provision of -reclaimed water, and will in no way constitute a waiver by the City of its right to exercise any remedy provided for any event of default, Section 4.04. Uncontrollable Circumstances. A. In this Contract, "Uncontrollable Circumstance" means any act, event, or condition beyond the control of a party that prevents the party from performing an obligation under this Contract. B. Neither party will be liable to the other for any failure or delay in performance of an obligation under this Contract that results directly from an Uncontrollable Circumstance, C. An act, event or condition is not beyond the reasonable control of a party if it is a result of any willful or negligent act, error or omission or failure to exercise reasonable diligence on the part of the party. D. The party experiencing an Uncontrollable Circumstance will notify the other party within five days of the occurrence of the Uncontrollable Circumstance and give a specific description of the Uncontrollable Circumstance, including the impact on the party's obligations under the Contract. Section 4.05. Independent Contractors. Nothing in this Contract will be construed as creating any form of partnership or joint venture relationship between the parties. The parties are independent contractors with respect to each other. Section 4.06. Assignment. This Contract will inure to the benefit of, and be binding upon, the successors and permitted assigns of the parties. Except as provided elsewhere herein, neither party may assign any of its rights or duties under this Contract without the written consent of the other party. Martin Marietta may, with prior written notice to the City, 1) assign or otherwise transfer its rights and obligations under this Contract to an entity acquiring the Martin Marietta Facility that will continue the operation of the Martin Marietta Facility in the manner contemplated in this Contract, or, 2) assign or otherwise transfer this Contract as collateral to secure loans providing financing or refinancing of the Martin Marietta Facility, Section 4.08. Taxes. Martin Marietta is responsible for the payment of all taxes that may be levied or assessed on its operations and activities under this Contract, except that no municipal Wes or fees which would otherwise be due to the City of San Marcos shall be payable over and above the consideration stated in this Contract. Section 4.09. Amendments. This Contract may be amended only through a written amendment executed by the parties. The term "will" in this Contract is mandatory. 9